TMI Blog2019 (7) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... l a/w. Mr. Prakash Shah, Mr. Jas Sanghavi and Ms Divyasha Mathur I/b Mr. Yogesh Rohira for the Petitioners in all petitions. Mr. P.S. Jetly for the Respondents in all matters. ORAL JUDGMENT : (M.S.SONAK,J.) 1] Heard learned counsel for the parties. 2] Learned counsel for the parties state that the issue involved in all these petitions is identical and therefore, all these petitions can be disposed of by common order. At their request, Writ Petition No. 6713 of 2018 is treated as the lead petition for sake of convenience. 3] The challenge in Writ Petition No.6713 of 2018 is to the order-in-original dated 24th October 2017 made by the Additional Director General, DRI (Adjudication) confirming the demands made upon the petitioner for customs duty and imposing upon the petitioner penalties under the provisions of Customs Act, 1962 (said Act). In fact, the impugned order dated 24th October 2017 is a common order, which has been impugned in all these petitions. 4] There is no dispute that as against the impugned order dated 24th October 2017, the petitioners have alternate remedy of institution of an appeal to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India vs. GTC Industries Ltd.). 6] Mr. Nankani submits that in the alternate these are fit cases where this Court should at least waive requirement of pre-deposit as prescribed in Section 129E of the said Act and direct the Tribunal to entertain the petitioners' appeals against the impugned order-in-original without insisting upon compliances with the requirement of pre-depoist. In support of this alternate contention, he relies on M/s IFB Industries Limited, Karnal vs. Commissioner of Central Excise and Service Tax, Panchkula STA122015 (O M) decided by Punjab and Haryana High Court on 14th March 2019 and Brij Kishore Maniyar, Proprietor of M/s. Peninsula Technologies vs. The Customs, Excise Service Taxex Appellate Tribunal (CESTAT), Kolkata and ors. (CEXA No. 6 of 2017) decided on 23rd April 2019. 7] Mr. P.S. Jetly, learned counsel for the respondents, submits that there is no infirmity whatsoever in the impugned orders or the decision making process leading to the impugned orders. He submits that several opportunities were granted to the petitioners, but it is the petitioners who failed to avail the same. He submits that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were not seriously interested in contesting the Show Cause Notices on merits, but were only interested in laying some foundation for eventually alleging breach of principles of natural justice. We however, hasten to add that this is only a prima facie impression. 12] The petitioners by their letter dated 13th June 2016 did request the Adjudicating Authority to examine the persons whose statements came to be recorded under Section 108 of the said Act before admitting such statements in evidence and thereafter granting the petitioners opportunity of cross-examination. The Adjudicating Authority after seeking some details from the petitioners, ultimately informed the petitioners that they would be afforded opportunity to cross-examine such persons on the appointed dates. The matters were posted on certain dates when, on behalf of the petitioners, adjournments were applied for. On one of the occasions, the Adjudicating Authority was himself not present. Finally, the matters were placed on 24th July 2017, on which date, neither the petitioners nor their advocates appeared before the Adjudicating Authority. 13] The paragraphs 3.1 5.0.3 of the impugned order-in-ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in the said decision pertain mainly to the provisions in Section 9D(1)(a) of the Central Excise Act, 1944 and not to the provisions in sub-clause (b) of the said section. In the present case, Mr. Nankani's submission mostly related to non-compliance with the provisions of Section 138B(1)(b) of the said Act, which is similar to Section 9D(1)(b) of the Central Excise Act, 1944. It is only in the course of rejoinder that Mr. Nankani attempted to urge that there was breach of Section 138B(1)(a) of the said Act as well. In paragraph 32 of this decision, which was emphasized by Mr.Nankani, the Delhi High Court has itself held that it is always open to the affected party to challenge the invocation of provisions of Section 9D in a particular case by filing statutory appeal. 16] In Slotco Steel Products Pvt. Ltd. (supra) entirely relies upon J K Cigarettes Ltd. (supra). There is nothing in the said two decisions which persuades us to take view that the petitioners need not be relegated to the alternate remedy under the said Act. 17] In GTC Industries Ltd. (supra) , this Court accepted the minutes of order and directed the Adjudicating Authority not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions, in which it has been held that the provisions of Customs Act will not affect the powers of jurisdiction of this Court under Article 226 of the Constitution of India. There is absolutely no dispute as regards such proposition. This however, means that in a given case there can be absolutely no bar to this Court examining orders made by statutory Authoritities without requiring the petitioners to avail of alternate remedies that may be available under the Statute. In the facts and circumstances of the present case, however, no case is made out to entertain these writ petitions when there is really nothing demonstrated as to why the petitioners cannot avail the alternate remedy of appeal, which is very much available to them. The contention that the requirement of pre-deposit itself constitutes a hardship, is neither pleaded nor elaborated. In any case, once the constitutional validity of such provision is upheld, we are not inclined to issue any writ or direction to the Appellate Authority to waive such mandatory requirement and entertain the petitions. 22] In IFB Industries Limited (supra) and Brij Kishore Maniyar (supra), there was no discussion on the issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
